HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HCP No. 156/2024 CM No. 7495/2024 Mohd. Khalil …..Appellant(s)/Petitioner(s) Through: Mr. Ajaz Chowdhary, Advocate vs UT of J&K and others .…. Respondent(s) Through: Mr. Dewakar Sharma, Dy. AG Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER 17.07.2025 ORAL 1. Detention Order No. DMP/PSA/23 of 2024 dated 13.11.2024 (For short ‘the impugned order’) passed by respondent 2 herein (For short ‘the Detaining Authority’) under and in terms of the provisions of Jammu and Kashmir Public Safety Act, 1978 (For short ‘the Act of 1978’) is being assailed by the petitioner herein in the instant petition filed under Article 226 of the Constitution. 2. The petitioner has challenged the impugned order while maintaining the instant petition on the following grounds:- i. That the perusal of grounds of detention shows that there is a reference of FIR NO. 120/1998 of Police Station Mendhar District Poonch, but the copies of the above said FIR and other material and dossier submitted by Senior Superintendent of Police Poonch were never provided to the petitioner to make a effective representation to the Government as well as to the respondent no. 2. Since the copies of the FIR and challan alongwith bail order and statements of the witnesses, site map, dossier submitted by Senior Superintendent of Police Poonch and other material referred hereinabove and material pertaining to Grounds mentioned in Grounds of detention as well as notice of detention, statements of witnesses, seizure memo, dossier submitted by Senior Superintendent of Police Serial No. 3 2 HCP No. 156/2024 Poonch and other related relevant documents, were not provided to the petitioner, the same had made the impugned detention order as illegal as the petitioner fails to make an effective representation to the respondents. In view of this the detention Order No. DMP/PSA/23 of 2024 dated 13.11.2024 is required to be quashed. ii. That as soon as the petitioner was detained under section 8(1) (a) (i) read with clause (ii) of sub-section (2) of section 8 of Jammu and Kashmir Public Safety Act, 1978, it was incumbent upon the respondents to immediately and forthwith inform the family members of the petitioner about the arrest/ detention of the petitioner but the family members of the petitioner were never informed and from the local inhabitants of Poonch, it came to the knowledge of the family members of the petitioner that he was detained under the provisions of section 8(1) (a) (i) read with clause (ii) of sub-section (2) of section 8 of Jammu and Kashmir Public Safety Act, 1978' and the documents annexed with the instant petition i.e. impugned dated 13.1 1.2024, grounds of detention was handed over to the cousin of the petitioner on 02.12.2024, when he had gone to Central Jail Kot Bhalwal Jammu to meet the petitioner. Since the family members of the petitioner were never informed about the detention of the petitioner, therefore, the detention of petitioner is illegal and in view of this the impugned detention Order No. DMP/PSA/23 of 2024 dated 13.11.2024 is required to be quashed and further directions are required to be issued to the respondents to release the petitioner from illegal/ unlawful custody. iii. That in a very casual manner, the respondent no. 2 had given the reference of FIR NO. 120/1988 of Police station Mendhar District Poonch and dossier submitted by Senior Superintendent of Police Poonch, but the copies of the above said FIR and challan and dossier submitted by Senior Superintendent of Police Poonch in the grounds of detention and had come to the conclusion that the petitioner is over ground worker of Terrorist outfit. There is no mention with regard to the status of the aforementioned FIR and challan registered against the petitioner and it is also not mention by the respondent no. 2 in the grounds of detention that bail in the aforementioned FIR was granted to the petitioner or not. As a matter of fact the petitioner stands already acquitted by the Hon'ble Court on the basis of above mentioned FIR and challan and the respondent no. 2 is silent on the aspect as to why the petitioner is required to be detained despite the petitioner was acquitted by the Hon'ble Trial Court and it seems that whatever has been communicated to the respondent no. 2 by the Senior Superintendent of Police, Poonch, on the basis of same the respondent no. 2 had detained the petitioner under the provisions of 'section 8(1) (a) (i) read with clause (ii) of sub-section (2) of section 8 of Jammu and Kashmir Public Safety Act, 1978'. Since there is no application of mind 3 HCP No. 156/2024 by the respondent no. before passing the impugned order dated 13,11.2024, therefore impugned order is required to be quashed. Copy of order dated 24.08.2000 is enclosed herewith and marked as ANNEXURE-III. iv. The averments made in the grounds of detention clearly shows that the detaining authority was not aware as to whether FIR and challan and Trial referred by them were disposed of by the competent court of law or not, which clearly shows that the competent authority was even not aware of the status of the FIR and challan and Trial and the petitioner has been wrongly and falsely detained under the impugned detention order which is required to be quashed. v. That the order passed by the respondent No. 2 is short of satisfaction as provided under the provisions of 'section 8(1) (a) (i) read with clause (ii) of sub- section (2) of section 8 of Jammu and Kashmir Public Safety Act, 1978. This thing must appear in the face of the order and the order must disclose that the detaining authority has assumed complete satisfaction in respect of all matters as envisaged under law. Since the constitutional safeguards as provided in Article 22(2) of the Constitution of India were violated, therefore, the impugned detention order is required to be quashed. vi. That the case of the petitioner was never referred to the Advisory Board and this illegality is enough to set aside the detention of the petitioner. vii. That the respondent no 2 in ground of detention has admitted that the petitioner was detained under PSA vide District Magistrate of order no. 08 of 1997 dated 16.09.1998 on the same grounds and still the respondent no 2 has passed the impugned order on similar grounds which is not permissible as the person cannot be detained on the basis of the grounds which were earlier considered and detention order was passed. Copy of detention notice as well as ground of detention are enclosed herewith and marked as ANNEXURE- IV. viii. That the respondent No. 2 had not mentioned the period for which the petitioner has been detained. The bare perusal of the impugned detention Order No. DMP/PSA/23 of 2024 dated 13.11.2024 shows that petitioner has been detained forever. The detention order is, therefore, without application of mind and according to the settled law, this type of lapse is a criminal negligence. In view of this the impugned detention order is required to be set aside and directions are required to be issued to the respondents to release the petitioner from illegal custody. ix. That the respondents are required to provide the translated script of the language, which is understandable by the petitioner. It is respectfully submitted that the petitioner is very little educated and so far as English language is concerned, the same is not understandable to the petitioner. It is respectfully submitted that the petitioner only understands Gojri and Urdu languages and all the material, which is 4 HCP No. 156/2024 provided to the petitioner, annexed with this petition is in English language which is not understandable by the petitioner. Even no translated version was provided to the petitioner nor it was made understandable to the petitioner about the documents provided to the petitioner. Due to the non supply of translated version of the documents referred hereinabove, the respondent had violated the fundamental right of the petitioner as provided under male A Article 22(5) of the Constitution of India and thus the petitioner debarred from making an effective representation to the competent authority against the order of detention, thus the order of detention renders invalid on this ground also and in view of this the impugned detention order is required to be set aside and directions are required to be issued to the respondents to release the petitioner from illegal custody. x. That the respondents were required to communicate the petitioner about the grounds of detention immediately after the detention order was passed or thereafter, after five days and in exceptional circumstances not later than 15 days, but in the present case the petitioner was detained by the police agency firstly at Poonch, wherein he was illegally detained for about 5 days and thereafter was detained at Central Jail Kot Bhalwal Jammu without informing and providing any material/grounds of detention to the petitioner. Perusal of the impugned Order No. DMP/PSA/23 of 2024 dated 13.11.2024 shows that the same was passed on 13.11.2024 and nothing was handed over or any information was provided to the petitioner with regard to his detention and it was only on 02.12.2024, the record annexed with the petition was provided to the cousin of the petitioner. It is respectfully submitted that provision of section 8(1) (a) (i) read with clause (ii) of sub-section (2) of section 8 of Jammu and Kashmir Public Safety Act, 1978 has been violated by the respondents with impunity as there are no special circumstances recorded by the respondent no. 2 for giving the documents to the petitioner at a belated stage and in view of this the order impugned is required to be quashed. xi. That the detaining authority is duty bound to record satisfaction as to why the detenue could not be deterred from indulging in similar type of activities under the ordinary criminal law of the land but in the detention order there is no such satisfaction recorded by the respondent no. 02 which clearly indicates that the detention order is passed without application of mind and without recording the satisfaction with regard to the fact that the detenue could not be deterred from indulging in similar type of activities under the ordinary criminal law of the land. Hence the impugned detention order is bad, illegal, outcome of non application of mind as well as arbitrary and also in violation of the right to liberty enshrined under constitution of India. xii. That the respondent no. 02 has also not discuss about the bail orders as well as other materials which is required to be 5 HCP No. 156/2024 discussed in view of the law laid by the Hon'ble Supreme court, hence the impugned detention order suffers from illegality/impunity and is required to be quashed. xiii. That the perusal of order impugned clearly indicates that there is no mention with regard to the right to make representation to the higher authority and to whom the petitioner will make the representation with regard to the impugned detention order, hence the detention order itself is without any lawful justification and is passed without application of mind and is required to be quashed. xiv. That the petitioner has no other alternate efficacious remedy available, but to approach this Hon'ble Court by way of present petition. xv. That the petitioner has not filed any other petition of similar nature or seeking same relief before this Hon'ble Court or before any other court of the country including Hon'ble Supreme Court of India. 3. Counter affidavit to the petition has been filed by the respondents wherein the petition is being opposed on the premise that in view of the activities of the petitioner being prejudicial to the security of the State and after deriving subjective satisfaction, the Detaining Authority ordered preventive detention of the petitioner in order to deter him from acting and indulging in such prejudicial activities. It is being further stated that the impugned order does not suffer from any malice or legal infirmity and as such, challenge thrown to the same is misdirected and misconceived. It is further stated that the Detaining Authority while detaining the petitioner observed all constitutional safeguards and followed due process of law. It is being next stated that in terms of the execution report duly signed by the petitioner, 16 leaves of record consisting of detention order, notice of detention, grounds of detention, dossier of detention, copies of FIRs, statement of witnesses and other relevant documents came to be furnished to the petitioner and that the petitioner was informed as well that he can 6 HCP No. 156/2024 make a representation against his detention which representation he did not make, although the grounds and order of detention were read over to him as well in Urdu/Hindi, which the petitioner fully understood. Heard learned counsel for the parties and perused the record. 4. Notwithstanding the multiple grounds of challenge urged in the petition, the counsel for the petitioner contended that the respondents including the Detaining Authority showed complete non awareness about the acquittal of the petitioner in FIR No. 120/1998 registered with Police Station, Mendhar referred and relied upon by the Detaining Authority in the grounds of detention, thus rendering the impugned order legally bad. Learned counsel for the petitioner would further submit that the petitioner was not furnished the entire material referred and relied upon by the Detaining Authority, which deprived the petitioner from making representation against his detention. 5. On the contrary, the counsel for the respondents while opposing the submissions made by the counsel for the petitioner, would heavily rely upon the averments made in the counter affidavit filed to the petition as also the record of detention produced during the course of hearing of the matter and would insist for dismissal of the petition. 6. In so far as aforesaid contention of the counsel for the petitioner qua non awareness of the acquittal of the petitioner in FIR No. 120/1998 in the impugned order of detention or in the grounds of detention is concerned, a closer examination of the grounds of detention, order of 7 HCP No. 156/2024 detention as also detention record would reveal that the Detaining Authority has not relied upon the said FIR for the purpose of passing of the impugned order and instead both the Sponsoring Agency as well as the Detaining Authority seemingly have shown awareness about involvement of the petitioner in the said FIR and presentation of challan thereof before the competent court. Therefore the plea of the counsel for the petitioner about acquittal of the petitioner in the said FIR not having been taken cognizance of by either the Sponsoring Agency or the Detaining Authority pales into insignificance more so in view of the judgment of the Apex Court passed in case titled as „Haradhan Saha vs. State of W.B.‟ reported in 1975 (3) SCC 198 wherein at Para 32 and 33, the following has been held:- “32.The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. 33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the 8 HCP No. 156/2024 future course of probable conduct on the part of the detenue.” 7. In so far as aforesaid next plea of the counsel for the petitioner is concerned, perusal of the detention record reveals that the petitioner stands furnished the material relied upon by the Detaining Authority, whereupon the petitioner seemingly has not filed any representation thereof against his detention. The petitioner has not even filed any response to the plea of the respondents that the material relied upon for his detention stands furnished to him. 8. A deeper and closer examination of the detention record would tend to show that the Detaining Authority upon receipt of the dossier and other material connected thereto from the Sponsoring Agency, seemingly has drawn subjective satisfaction thereof, in that, the Sponsoring Agency owing to the activities of the petitioner had reported to the Detaining Authority that the petitioner resumed his illegal activities as a committed OGW by providing all types of logistics to the active terrorists in the District while referring to the series of terrorist acts committed in the area since 2021, 2022, 2023 and 2024 and therefore in order to prevent the petitioner from continuing with such activities being prejudicial to the security of the State, sought and ordered his preventive detention under the Act of 1978. Law is well settled in so far as preventive detention is concerned that the power to detain a person under preventive law can be exercised for preventing a person from engaging in or pursuing or taking some 9 HCP No. 156/2024 action which is either prejudicial to the security of the State or affects adversely or is likely to affect the maintenance of public order in order to prevent him from making preparations from engaging in such activities and that in the process, the Detaining Authority has to take into account the conduct or activities of the detenue for coming to the conclusion that detenue is going to engage in such activities and based upon its subjective satisfaction can direct detention of the person under preventive law and drawing of such subjective satisfaction is the exclusive domain of the Detaining Authority and Court cannot sit in appeal over such subjective satisfaction. 9. Viewed thus, for what has been observed, considered and analysed hereinabove, the only inescapable conclusion that to be drawn is that the impugned order does not call for any interference. Resultantly, the petition fails and is dismissed. 10. The detention record produced by the counsel for the respondents is returned back in the open Court. (JAVED IQBAL WANI) JUDGE Jammu 17.07.2025 Neha-II Whether the order is speaking: Yes Whether the order is reportable: Yes NEHA KUMARI 2025.07.22 14:40 I attest to the accuracy and integrity of this document